Following the Supreme Court’s decision in Arizona v. Gant1 two years ago, it appears the lower federal and state courts have been blitzed with civil litigation as to what seemingly is a non-complex issue. Sure, when the Court first issued the opinion, several of us in law enforcement circles immediately responded that policing efforts, particularly that of patrol officers, would be severely hampered. Even I was a bit skeptical upon my initial review. But, a careful reading of the Gant opinion makes sense given the Supreme Court’s legal precedent regarding vehicle searches under the Fourth Amendment of the U.S. Constitution.
Apparently not fully grasping the opinion, many criminal defense attorneys during motion-to-suppress hearings, and civil plaintiff attorneys in civil litigation, argue that any vehicle search following a traffic stop is unlawful. This, of course, is false, as the Gant decision does not do away with all searches of vehicles. It doesn’t even eliminate the “search incident to arrest” theory, although it does limit this type of search under certain circumstances.
Summary of Gant
Gone are the days when officers could search the passenger compartment of vehicles following an arrest as a matter of course under the “search incident to arrest” theory. Following Gant,2 police officers are limited in when they’re permitted to conduct searches of vehicles incident to an arrest.
Gant basically allows police officers to search the passenger compartment of a vehicle following a lawful arrest when:
1. The arrestee is within reaching distance of the passenger compartment at the time of the search, or
2. It’s reasonable to believe the vehicle contains evidence of the crime forming the basis of the arrest.
“When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”3
Officers are routinely faced with the following scenario: While on routine patrol, and as a result of randomly conducting a computer check of the license plate of a vehicle next to them, an officer learns that the registered owner is male and is driving on a revoked driver’s license. The officer conducts a traffic stop based on that information and discovers the driver is the registered owner of the vehicle. The officer places the driver in handcuffs and secures him in a squad car to be transported to the police department for processing in accordance with state law.
Under these circumstances, the officer isn’t permitted to search the vehicle incident to an arrest. First, the driver, once he was handcuffed and placed in the rear of the squad car, is no longer within lunging distance of the passenger compartment at the time of the search. Second, there’s no reasonable expectation that the officer is going to find evidence of the crime of driving on a revoked driver’s license inside the vehicle.
United States v. Polanco
United States v. Polanco4 provides post-Gant litigation that further clarifies Gant.
Stiven Polanco was arrested and later indicted on heroin-trafficking and firearms charges as a result of a joint task force investigation beginning in the fall of 2008. An undercover task force member bought heroin from David Contreras, a suspected drug dealer, several times between October and November 2008. Each deal took place at an upscale mall.
In December 2008, the undercover agent telephoned Contreras and offered $1,500 for 20 grams of heroin. Following that call, Contreras spoke to Polanco a total of six times later that day, and a total of nine times on the day of the actual deal. On the day of the deal, Contreras and Polanco waited for the task force agent at the agreed place inside the mall. After arriving, the agent and Contreras walked to a nearby restroom and made the exchange. Following the exchange, Contreras returned to where Polanco was sitting and counted the money. They left the mall in Polanco’s red Toyota Camry.
About a week later, the agent telephoned Contreras and offered $6,500 for 100 grams of heroin. They agreed to meet at the same place in the mall. The telephone records revealed that Contreras spoke with Polanco a total of six times, and that on the day of the deal, Contreras spoke with Polanco immediately following a phone call with the agent.
The task force decided it was going to arrest Contreras and any of his associates during the deal. However, there was a concern that arresting them inside the mall might endanger mall patrons and employees, so they unexpectedly changed plans. The agent called Contreras and convinced him to meet him in a parking lot at another location. Contreras told the agent that he would be in a red Camry.
When agents arrived on the scene, they arrested Contreras and Polanco, who was sitting in the driver’s seat. The agents found no heroin on either individual. Due to heavy rain, the agents drove Polanco’s car to the local DEA office. There, the agents conducted a warrantless search of the car and found nearly 95 grams of heroin and a loaded handgun in a hidden compartment inside an armrest. Agents secured a warrant for Polanco’s residence and located additional heroin and items used to distribute the drug.
At a motion-to-suppress hearing, Polanco, through his attorney, argued that the warrantless search of his vehicle and the subsequent search of his residence were illegal as “the fruit of the poisonous tree.” However, the district court judge found that the search of the car was constitutionally permissible under the automobile exception to warrantless searches. The matter proceeded to trial, where a jury convicted Polanco of all charges against him.
On appeal, Polanco argued that the Gant decision limits warrantless vehicle searches to situations where an arrestee is in a position to threaten officer safety or destroy evidence. Because he was in a cell when the agents conducted the search of his car, Polanco argued that the search was unlawful.
The appellate court disagreed with Polanco that the search of the vehicle was conducted pursuant to the “search incident to arrest” doctrine. In doing so, it reminded Polanco of the two specific situations that such a search would apply and also noted that Gant held that officers are still permitted to conduct vehicle searches under other doctrines.
In this case, the search of the vehicle was conducted pursuant to the automobile exception to the warrant requirement. That is, “if there is probable cause to believe a vehicle contains evidence of criminal activity,” officers can search without a warrant “any area of the vehicle in which the evidence may be found.”5 The court noted that Gant specifically addressed this exception to the warrant requirement and didn’t do away with it. It also noted that several other federal circuit courts agreed that the automobile exception has survived under Gant.6
The appellate court went on to explain how the automobile exception to the warrant requirement is distinctive from the “evidence-preservation component”7 in Gant. It found that the automobile exception is broader than Gant’s “evidence-preservation component.” In other words, Gant’s “evidence-preservation component” is limited to the evidence for which the arrestee was arrested and for which there is a “reasonable basis” to believe it exists. The automobile exception extends to evidence of other offenses and for which requires probable cause.
The court applied the facts under the automobile exception to the warrant requirement and found the following: The agents bought heroin from Contreras and Polanco one week earlier in the same mall with the same car. During the phone conversation following the agents’ decision to move to a different location, Contreras told them to come “get this stuff.”8 Additionally, after nothing was found on the two suspects during a pat-down search, Contreras confessed (after being Mirandized) that Polanco was his supplier and that heroin and a loaded gun would be found in the armrest. This was more than enough probable cause to believe that contraband would be found in Polanco’s car. As such, the search of Polanco’s car was lawful pursuant to the automobile exception under the Fourth Amendment.
For another opinion under similar circumstances but where officers did not have probable cause in the form of a confession, see United States v. Webster.9
Isn’t a Search a Search?
It’s important for officers to understand the difference between the various search theories available outside the warrant requirement. By knowing the difference, officers are less likely to lose a motion to suppress or face civil liability.
For example, let’s assume an officer makes a lawful arrest for a suspended driver’s license. The police department has a policy that those arrested for such offenses who cannot arrange for another individual to drive the car away will have their vehicles towed. Under such circumstances, officers are to conduct administrative inventories; in this case, the inventory is done as the driver is transported by another officer for processing. The officer searches the trunk and locates contraband in plain view. Following that search, he charges the driver of the car with additional crimes.
However, when writing his police report, the officer writes that he conducted a search of the vehicle “incident to an arrest.” Does this create a problem? You bet it does. If the search was really incident to the arrest for a suspended license, why is the officer searching the trunk? Additionally, Gant prohibits a search incident to an arrest under these precise circumstances. A criminal defense attorney would have a field day on cross-examination of this officer, resulting in the granting of a potential motion to suppress.
It cannot be stressed enough how important it is to understand the different search theories. The Polanco court agrees: “[t]hese distinctions make a difference. And, for obvious reasons, it is important to keep them straight.”10
1. 129 S.Ct. 1710 (2009).
2. Refer to the June 2009 issue of Law Officer for a full explanation of the Gant
3. Id. at 1723-24 (emphasis added).
4. 2011 WL 420747 (1st Cir., Feb. 9, 2010)
5. Gant, 129 S.Ct. at 1721 (citing United States v. Ross, 456 U.S. 798, 820-21
6. The 4th, 5th, 7th, 8th, and D.C. circuit courts agree.
7. The second circumstance enunciated by Gant, above.
8. Polanco, at *4.
9. 625 F.3d 439 (8th Cir. 2010).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.